Prehearing Statement of Upper Gunnison River Water Conservancy District

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The balancing concept in S.B. 216 also supports the appropriateness of the reach. There are no existing decreed exchanges that would be injured, as such exchanges would all be senior to the water rights the District is seeking. Upstream development or future exchanges that would be junior to the District's water rights will not be foreclosed entirely since the District has appropriated flows that are less than average, and has not appropriated year-round water rights for the whitewater park. (Exhibit A; testimony of James Slattery.) It is not anticipated that the water rights will affect flooding, flood control or the one-hundred year flood elevations. (Testimony of John DeVore) c. Whether there is access for recreational in-channel use. District's Position: The Gunnison Whitewater Park is being developed and will be operated and maintained by Gunnison County as described in the Intergovernmental Agreement dated March 26, 2002, between the District and the County ("IGA"). (See Exhibit E.) The County currently owns a significant portion of the land, bed and banks of the Gunnison River comprising the Gunnison Whitewater Park, and is negotiating the purchase of the remainder. The County anticipates closing that purchase in the near future. (Testimony of John DeVore.) Thezefore, access is available for recreational in- channel use. d. Whether Exercise of the Recreational In-channel Diversion Would Cause Material Injurv to Existing Instream Flow Water RiQhts. District's Position: The District has confirmed with CWCB staff inember Ted Kowalski that the CWCB holds no instream flow water rights on the Gunnison River in the reach of the Gunnison Whitewater Course. In addition, there are no other instream flow water rights that would be impacted by the whitewater course. Therefore, exercise of the District's water rights would not cause material injury to existing instream flow water rights. e. Whether Adiudication and Administration of the Recreational In-channel Diversion Would Promote Maximum Utilization of the Waters of the State. District's Position: Any water rights obtained for the Gunnison Whitewater Park will promote maximum utilization of the State's waters just as much as any other water right. S.B. 216 specifically authorizes water to' be diverted and put to beneficial use for recreational in-channel purposes. Beneficial use is the hallmark of "utilization," and can be either consumptive or nonconsumptive. Because a recreational in-channel water right is nonconsumptive, the water, like that used in a hydroelectric facility, is available downstream of the reach for other uses, both consumptive and nonconsumptive. The nonconsumptive use of water on its way downstream to other uses promotes maximum utilization. See Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1149 (Colo. 9